Kimball v. Hewitt — 17 N.Y. St. Rep. 743

Majority

p. 743

Andrew J. Kimball, Pl’ff, v. Abram S. Hewitt, as Mayor, et al., Def’ts.

(New York Court of Common Pleas, Special Term,

Filed August 10, 1888.)

Headnote

1. New York (City of)—Lighting the streets—Contract—Lowest bidder—Duty of public officer.

Where the statute requires a public officer to award a contract for public work to the lowest bidder, he may be restrained by injunction from giving it to any one else, and principle requires that the highest bidder should not be made the lowest bidder by the withdrawal of the lowest bidder.

3. Same—Who may bring action to prevent illegal act of officers of municipal corporations—Laws 1887, chap. 673.

While under chapter 673, of Laws of 1887, an action to prevent any illegal act on the part of any officers of a municipal corporation may be brought by any person whose assessment shall amount to a thousand dollars, and who shall be liable to pay taxes on such assessment to such municipal corporation, the object of the action being to prevent waste or injury to the property, funds or estate of such municipal corporation, yet in all applications of this charac'er it is the duty of the court to see to it thathe who undertakes to champion the public cause is actuated by public motives, and that he is not making use of the power of the court to accomplish some private end.

3. Same—When duly denied. ’

_ Where the circumstances are all inconsistent with the idea that the plaintiff began this action, but was brought into it by somebody who had a private purpose to accomplish, and who for his own advantage, is attempting to pervert the statute of 1887 to a use never contemplated, Held, that the action lacked the essential element of sincerity, and for that reason should not be allowed to succeed.

p. 744

This action was brought by the plaintiff, as taxpayer, to restrain the defendants, the mayor, the comptroller and the commissioner of public works, who are members of what is known as the gas commission, under the provisions, of section 69, chapter 410, Laws of 1882, from executing any contracts with certain companies for furnishing electric lights to the city, because the New York Electrical Construction Company had been allowed to withdraw its bid. Before the bids were opened, the request of the Electrical Construction Company’s counsel, to be allowed to withdraw the bid, was granted.

Had the defendants been acting in their own private business, there is no doubt that they could have permitted the offer made by the Electric Construction Company to be withdrawn, but acting as public officers-they could not lawfully forego the right that the city had acquired to insist that the company should either carry out its offer or forfeit the amount that it had deposited as security. When the bid of the electric company, with the certified check that accompanied it, passed into the hands of the commissioner of public works, the statute prescribed the disposition that should be made of the one and the other. The bid was to be publicly opened by the officers, who are the defendants in this action, and the contract-was to be awarded to the lowest bidder. If the lowest bidder should refuse to execute, that is to say, sign the contract within five days after notice that it had been awarded to him, the amount of the certified check that he had deposited as security was to be forfeited and retained by the city as liquidated damages, and paid into the sinking fund. No-other disposition of the bid and the check was lawful. It has .been decided that where the statute requires a public* officer to award a contract for public work to the lowest bidder, he may be restrained by injunction from giving it to any one else (High on Injunctions, §§ 1251,1252), and the principle requires that the highest bidder should not be made the lowest bidder by the withdrawal of the lower bids. It-matters not how honestly the officials acted (and no one-questions the absolute integrity of the distinguished gentlemen who are the defendants), their consent to the withdrawal of the bid was in conflict with the statute.

Now, who has the right to complain of their action I The act of 1887 (chap. 673), provides that an action to prevent any illegal act on the part of any officer of a municipal corporation may be brought by any person whose assessment shall amount to $1,000, and who shall'be hable to pay taxes on such assessment to such municipal corporation. The object of the action is “to prevent waste or injury to-

p. 745

the property, funds or estate of such municipal corporation..” The plaintiff alleges in his complaint that he possesses the qualifications mentioned in the statute, and there is nothing before me to cast doubt upon his allegation. But in all applications of this character it is the duty of the court to see to it that he who undertakes to champion the public cause is actuated by public motives, and that he is not making use of the power of the court to accomplish some private end. This is a familiar rule, and it was applied by Judge Van Brunt in Hull v. Ely ( 2 Abb., N. C., 440 ), a case that strongly resembles this. There Mr. Hull, as a taxpayer brought an action against Mr. Ely to prevent waste of the city’s property through a sale of certain ferry franchises in a manner that caused a loss to the city treasury, but Judge Van Brunt denied an injunction because, to use his own language, “it is apparent from the circumstances surrounding this case that the plaintiff has not commenced this action to protect his interests as a taxpayer, but that the real parties in interest are the persons now using the ferry franchises, and consequently he has no right to call upon the court for the exercise of its equity powers.”

I find in the papers before me much that casts suspicion upon the bona fides of the present action. In saying this, I feel it my duty to add that I do not mean to impute a bad motive to the plaintiff’s attorney, who has been retained, I suppose, because his good name lends respectability to any cause of which he is the advocate. The facts stated in the complaint constitute a good cause of action, and, if the plaintiff were really seeking redress, would warrant the granting of an injunction; but, as I have said, it is my duty to know that the plaintiff is honestly protecting his interests as a taxpayer, and that he is not resorting to this action for the purpose of forwarding the operations of the persons who compose the Electric Construction Company.

From the papers before me it is obvious that this action was well under way before the plaintiff had any connection with it. Somebody had sufficient interest in the subject to-employ an attorney, and to prepare many of the papers before the name of Mr. Kimball anywhere appears. The original plaintiff was, as I find, William B. Lynch. Exactly when Mr. Lynch lost his interest in protecting the property of the city from waste, I am unable to discover, but it must have been about the seventh or eighth of June. Though some proceedings were taken in the name of Lynch after the eighth of June, the summons bearing the name of Kim-ball is dated June 7, 1888. The complaint is all in typewriting except the name of the. plaintiff, which was evidently inserted with the pen after the complaint had been completed. The conclusion seems to be a fair one that,

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having got the papers all ready, the real party in interest was compelled to look around for a plaintiff. From the fact that the complaint was not verified until the twelfth of June, it is not unreasonable to infer that the search was a long and tedious one. These circumstances are all inconsistent with the idea that the plaintiff began this action. He was brought into it by somebody who had a private purpose to accomplish and who, for his own advantage, is attempting to pervert the statute of 1887 to a use never contemplated by the legislature.

At the argument it was charged that the Electric Construction Company was the real promoter of this litigation. For some purpose of its own, it repeatedly applied for leave to withdraw its bid. The affidavits relied on to sustain the injunction are chiefly those made by its vice-president. Except the statement of the vice-president, there is nothing to show that the company possesses any capital, or that it is able to carry out any contract. It has no plant, and the statements contained in its bid, that “its existing central station is in Thirty-fourth street, between Ninth and Tenth avenues,” is not proven to be true. I am satisfied that Mr. Lynch, for reasons satisfactory to himself, declined to act as plaintiff, and that Mr. Kimball was then induced to act as his substitute.

The action lacks the essential element of sincerity, and, for that reason, in the exercise of a judicial discretion, I dissolve the preliminary injunction, and deny the motion to continue the injunction, with ten dollars costs.